Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 210975
ELIA, J.Ronald Rose was determined by a jury to be a sexually violent predator (SVP) and committed by the court to the custody of the California Department of Mental Health under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). On appeal, he claims that he was denied due process and a fair trial as a result of instructional error and the admission of unreliable hearsay evidence. He also asserts that the SVPA violates the ex post facto clause and the equal protection clause of the United States Constitution. We affirm the order of commitment.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
A. Trial Evidence
Dr. Robert Owen, a licensed psychologist, whom the court recognized as an expert in clinical psychology, testified that appellant, born in 1942, has a diagnosed mental disorder of chronic pedophilia with a sexual attraction to males. Dr. Owen interviewed appellant twice.
Dr. Owen discussed appellant's personal history, which he had taken into consideration in reaching his opinions. While appellant was in the Navy, after joining at age 17, he started a fire in a movie theater. Appellant spent time in the brig and he was hospitalized in a military psychiatric facility in 1959. Appellant had characterized this incident as a suicide attempt.
After a later honorable discharge from the Navy, appellant went to Colorado. There, in 1961, he had committed an offense of "indecent liberties and contributing to juvenile delinquency" and had spent 90 days in jail. Appellant also had stayed briefly in the Colorado State Hospital. Then, in about January 1963, appellant committed new sexual offenses with young boys, which Dr. Owen thought "demonstrate[d] the emergence of the pattern of pedophilic behavior."
Appellant had met those boys, ages nine and 12, through the church. During a sleep-over with appellant, appellant sodomized the younger boy and fondled the 12-year-old boy's penis. Appellant pleaded not guilty by reason of insanity and was placed in a state mental hospital for five and a half years. Appellant told Dr. Owen that "while he was in the hospital boys as young as eight and ten years would crawl in bed with him" and he had "sexual relations with boys" in that facility.
Dr. Owen testified that appellant then escaped from the hospital and went to Texas. There, he allegedly committed sodomy in 1969 and was arrested but the charges were dismissed.
Dr. Owen testified that records show that, in 1972, appellant committed offenses against a 12-year-old boy in California and was convicted of two counts of child molestation. Appellant had brought the boy to the auto races and then back to his home, where he gave the boy whiskey. The boy stayed the night and appellant sodomized him "on four occasions . . . ." Appellant was again hospitalized, this time for about a year at Atascadero State Hospital under California's mentally disordered sex offender program.
Appellant had problems at the state hospital because he did not progress in treatment, he did not seem to recognize the "seriousness of his offending," and "he was targeting young looking men" while in treatment there. "[T]he state hospital returned him to court, [finding] him unamenable to treatment." The court sentenced appellant to an indeterminate term and he served about three years in prison.
Appellant's criminal records show that during the year following his release from prison, in October 1977, appellant poured flammable liquid on the steps of a neighbor with whom he was having problems. Appellant was convicted of an attempted arson in 1977 and he was placed on three years probation.
There are no records of additional offenses until 1989, when appellant committed offenses against a 12-year-old boy named Aaron. Dr. Owen reviewed both the police reports and the probation report with respect to that case. At the time of the offenses against Aaron, appellant was living with a 14-year-old runaway boy named Jason. Appellant had told Dr. Owen that he had "photographed Jason nude" and he had been "involved with him sexually." When Jason was arrested, appellant's sexual offenses against Aaron came to light.
According to reports, Jason helped appellant meet other boys. He "would take Jason to the arcades and give him tokens or money and ask him to meet other boys and bring them over . . . ." Jason met Aaron, gave him tokens for the arcade, and asked if Aaron wanted to watch car races. Aaron obtained permission from his father to go to the races and appellant drove the three of them there. That night they all slept together outdoors between two sleeping bags. Aaron reported that he heard appellant and Jason "engaging in sexual acts" and appellant "attempted to put his hands down [Aaron's] pants and squeeze his penis" and "rub his buttocks" and made "sexual contact with him."
According to Jason, appellant had stated that he had "digitally penetrated [Aaron's] anus, putting his finger in the boy's anus." Appellant had seemed to Jason to be "very sexually aroused during the night." The next day, Aaron appeared to Jason to be " 'real shaken up and, unstable' " and appellant appeared " 'sketched out,' . . . meaning nervous." Jason indicated that appellant "was worried about Aaron disclosing the offense" and "was afraid [Aaron] might tell his father."
The scenario repeated itself on a second occasion, when "they essentially did the same thing." Appellant took Aaron to the speedway to watch a race and, again, attempted to fondle Aaron.
Appellant was convicted and sentenced to 27 years in prison. There were no reported violations of prison rules while incarcerated. After serving 13 and a half years, appellant came up for parole. Proceedings under the SVPA were commenced. He was sent to the Coalinga State Hospital while awaiting trial in this commitment proceeding. At the time of trial, there had been no reported incidents that appellant had engaged in inappropriate or deviant behavior or exhibited behavioral problems at Coalinga State Hospital.
At the hospital, appellant had participated in an anxiety depression group, an over-60 group, and Alcoholics Anonymous. Appellant had attended and completed numerous programs, including a "Preventing Relapse" program, a "Coping with Anxiety and Depression" program, a "Relationship Skills" program, a "Socialization Skills" program, a "Stages of Change for Substance Abuse Recovery" program, and a "Thinking About Your Thinking" program. On his own, appellant had completed the Adult Relapse Prevention workbook by Charlene Steen. After completing the workbook, appellant had drafted an "urge control pact," an "urge control plan," and a "release plan."
While Dr. Owen commended appellant for engaging in various therapy groups, appellant had not participated in the second phase of the SVP treatment program, which Dr. Owen felt was necessary because appellant had "displayed a strong interest in boys" and a problematic pattern of behavior. Dr. Owen did not find appellant's explanation, that he had no time for phase two because of his involvement in the various other groups, compelling since appellant had a "real problem that needs to be vigorously addressed in this [SVP] treatment program."
Dr. Owen explained the five phases of treatment for SVP's. The first phase involves education about the treatment program but no treatment. Phase two begins treatment with group and individual therapy and psychotropic medication if necessary. Phase three involves learning to interact using what has been learned in phase two. Phase four involves preparation for discharge from the hospital into the community. Phase five involves continued treatment and close monitoring while out in the community.
To assess the risk that appellant would reoffend, Dr. Owen used an instrument called the Static 99, which considers 10 factors. Dr. Owen stated that appellant fell into the highest risk category with a score of eight and "according to this measure has a significant risk for sexually reoffending." He explained that two groups of factors, those related to sexual deviance and general criminality, statistically related to the risk of reoffending. He also indicated that an individual was at a higher risk of reoffending if the person drops out of treatment and recognized that appellant had not officially dropped out of any treatment. Dr. Owen mentioned a study looking at men released from the California prison system which showed that "men who had a score of eight on the Static 99 like Mr. Rose had a 100 percent rate of sexually reoffending."
Dr. Owen acknowledged that appellant was not a psychopath and did not have antisocial personality disorder. He agreed that increasing age may be a protective factor possibly because of declining testosterone levels, diminished health, and, in some cases, fewer opportunities to offend. Dr. Owen did not think the age factor sufficiently reduced appellant's risk since appellant was "fixated and determined and the pedophilia ha[d] been a way of life."
Concerning future dangerousness, Dr. Owen testified: "[Appellant] is a danger to 12-year-old boys and boys who are younger. I think that he is apt again to befriend a boy like Jason, take boys to the races, possibly give them alcohol as he has done in the past and sodomize[] them." He observed that appellant "befriended Jason, a 14-year-old boy, a runaway, had Jason live with him" and they had "regular sex." He further testified: "Jason said that his task was to find other boys, plural, to offer them alcohol or drugs, to go to arcades and find these boys. This is a very systematic approach of a rather skilled pedophile who is looking for new victims."
Dr. Owen noted that appellant returned to his old ways the last time he was out in the community even though he had intended to date persons over the age of 18. He stated that appellant's pedophilic disorder "causes him to have great difficulty with self control." Dr. Owen stated that appellant had acknowledged seven victims. Dr. Owen concluded that the two most significant factors in this case were age and sexual deviance and the sexual deviance factor "certainly" outweighed the age factor because the "sexual deviance [was] so compelling" and involved "years of sexual offending with multiple victims."
Dr. Owen pointed out that appellant has been undeterred by the consequences of his past behavior. He noted that the three instances of hospitalization, namely the first hospital stay at Colorado State Hospital after which he reoffended, the second stay at Colorado State Hospital from which he escaped, and the stay at Atascadero State Hospital from which he was discharged as unamenable to treatment.
In Dr. Owen's opinion, appellant needed to be maintained in a secure facility because he is a danger to boys 12 years old and younger. Dr. Owen concluded that appellant suffers from a pedophilic disorder that he cannot control and, in his opinion, there have been no real changes reducing the risk of danger posed by appellant's mental disorder.
Dr. Nancy Rueschenberg, a licensed clinical psychologist whom the court recognized as an expert in clinical psychology, testified that she evaluated appellant in March 2005. In addition to interviewing him for approximately two hours and 15 minutes, she looked at the packet of information concerning appellant that she received from the Department of Mental Health. She concluded that appellant had a mental disorder of pedophilia with a sexual attraction to males and he was at "serious risk to reoffend" because "he has been convicted of molesting boys on a number of occasions." She explained that, while "[o]verall age does decrease the risk of sexual recidivism," male sex offenders with male victims are at higher risk of reoffense and so are individuals with multiple past convictions.
The Static 99 indicated that appellant's risk of sexual recidivism was 45 percent at 10 years and 39 percent at five years. Although the Static 99 is more reliable in the SVP context, Dr. Rueschenberg also performed a risk assessment using the SORAG, another risk assessment instrument, to corroborate that appellant was a serious risk.
Dr. Rueschenberg testified that phase two of the treatment program involves intense group work and skills acquisition. She believed that group treatment of sex offenders is essential to recovery and someone suffering from a severe mental disorder cannot deal with it on a self-help basis. She also indicated that parole supervision was inadequate for a sex offender like appellant because he would not be monitored adequately and any supervision would end after two years.
Appellant testified on his own behalf. He admitted reoffending with Jason and Aaron. Appellant explained that he had reoffended because he was "too confident." He admitted that he had rationalized that he was helping Jason who was homeless and using drugs and he had not sought any help. He claimed he no longer had sexual desire for minors. He testified that he was born in 1942 and he was 63 years old. He understood that, if he reoffended in the future, he would spend the rest of his life in prison.
Appellant stated that in June 2006 he had written an urge control pact based on Dr. Steen's relapse prevention materials. His urge control pact involved a stepped process of self-talk and physically removing himself from a tempting situation. He planned to always carry it with him. He also had drafted a more detailed document called an urge control plan, which provided 11 steps he planned to implement after getting himself out of a problem situation and which included persons whom he could contact for help.
In June 2006, appellant had also written a release plan. It addressed where he would reside, employment, interpersonal relationships, transportation, clothing, and accountability upon release. He understood that part of accountability was his compliance with sex offender registration requirements and parole requirements. He planned to go to Sexoholics Anonymous, Sex Addicts Anonymous, and AA when he returned to San Francisco.
Appellant stated the most important tools that had aided him in drafting his urge control pact were Dr. Steen's relapse prevention workbook and the group class "Thinking About Your Thinking." The workbook covered information on thinking errors, recognizing and dealing with emotions, making choices, urge control, self understanding, victimization and empathy, communication, and sex, love, and friendship and it contained exercises. Appellant confirmed that he had also participated in a number of other classes, groups, and programs at Coalinga State Hospital, including a course on self-esteem, AA, an over-60 group, and a preventing relapse program.
Appellant explained that he had not entered phase two of the sex offender program partly because it had not been "proved effective" and it was "not getting anybody out" and partly because it conflicted with other groups in which he was already participating.
Appellant testified to a personal history largely consistent with Dr. Owen's testimony. He claimed, however, that the sodomy charge in Texas involved a man but "[t]here was nothing to the charges." He denied pouring a flammable liquid on the steps and claimed he pleaded guilty because his bail was secured by his parents' property and he "had to settle the case" because his parents "needed the bail lifted off of it." He also claimed that Aaron was the only boy he had "ever picked up in an arcade . . . ." He admitted to having sex with Jason and to having nude pictures of Jason. He confirmed that he was 47 years old when he was molesting Jason and Aaron and already had been to three psychiatric hospitals, three jails, and prison.
Brian Abbott, a Ph.D., a licensed clinical psychologist whom the court recognized as an expert in the field of diagnosis and deviant offenses, testified on appellant's behalf. Dr. Abbott described the Static 99 as "one of the more widely administered risk assessment instruments" but explained that it "only accounts for roughly 11 percent of the reasons why someone sexually reoffends." He cautioned, however, that attempting to adjust the Static 99's risk of recidivism based upon other factors substantially lowers the accuracy rate of the actuarial instrument. He explained that the Static 99's risk percentages cannot be applied to a specific individual and that, furthermore, the Static 99 was developed using a sex offender population from Canada and the United Kingdom that was "likely significantly different" than the sex offenders in the United States.
Dr. Abbott stated that the Static 99 was based primarily on younger child molesters, "probably late 20's early 30's." He agreed that sex offenders are less likely to recidivate as they age. He indicated that "a marked decrease in sexual recidivism" begins at the age of 50 with "a steady decline" thereafter and research had shown that "younger aged sex offenders sexually reoffend at a significantly higher rate than the older age offenders." He testified that, at age 60, the rate of recidivism drops below 10 percent and discussed a number of studies. He stated that the Static 99 "overpredict[s] sexual recidivism for older age offenders . . . ."
Dr. Abbott testified that the SORAG was not a useful tool for assessing the risk of reoffense because it had not been cross-validated and because it included physically violent offenders. He indicated that the clinical approach to assessing risk is even less accurate that the actuarial approach.
Dr. Abbott acknowledged that he had not met with appellant in this case. He was retained by defense counsel to focus on the age issue.
B. Alleged Instructional Error
1. Refusal to Give Proposed Pinpoint Instruction
At trial, appellant's counsel requested the following instruction: "Amenability to treatment is not required for a finding that any person is a sexually violent predator, nor is it required for treatment of that person. Treatment does not mean that the treatment [will] be successful or potentially successful, nor does it mean that the person must recognize it as a problem and willingly participate in the treatment program. You must also consider any evidence of the respondent's amenability to voluntary treatment[,] [t]hat is without custody[,] [i]n determining whether the respondent poses a serious and well-founded risk of committing sexually violent predatory criminal acts upon release."
Appellant does not dispute that the trial court instructed the jury as to the proof required to find him to be an SVP. Appellant asserts, however, that the trial court was required to give the requested instruction regarding amenability to treatment and its refusal resulted in a denial of due process and an unfair trial. He claims that the proposed instruction merely tracked section 6606, subdivision (b), and the remainder was warranted under People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888 (Ghilotti). Appellant argues that "ample evidence" showed that "he would be amendable [sic] to receiving treatment voluntarily if released from custody."
We agree that amenability to treatment was relevant to the jury's determination. In Ghilotti, the Supreme Court considered the pre-petition requirement of evaluation by mental health professionals established by section 6601, subdivision (d). That statutory provision states: "If both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody, the Director of Mental Health shall forward a request for a petition for commitment under Section 6602 . . . ." The Supreme Court agreed that "the phrase 'without appropriate treatment and custody' does not preclude the evaluators from concluding, with all due prudence, that the person's amenability to effective voluntary treatment reduces below this serious level his potential danger of reoffense if free, and that the person therefore does not meet the criteria for commitment to the Department's custody." (Ghilotti, supra, 27 Cal.4th at p. 916.)
The court in Ghilotti concluded that an evaluator applying the statutory standard "must conclude that the person is 'likely' to reoffend if, because of a current mental disorder which makes it difficult or impossible to restrain violent sexual behavior, the person presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community." (Id. at p. 922.) It clarified that "insofar as the [standardized assessment] protocol permits, the evaluators may consider any factor which, in their professional judgment, is relevant to the ultimate issue whether the person is a substantial danger to reoffend if free in the community without any conditions, supervision, monitoring, or mandatory treatment in the Director's custody." (Id. at p. 927.) It observed that some of the relevant factors might include whether "there is practicable treatment, readily available in the community," and whether an individual is "willing and able to pursue such treatment as long as it is needed." (Ibid.)
In Cooley v. Superior Court (2002) 29 Cal.4th 228, the Supreme Court looked at the judicial determinations required at the probable cause hearing, which includes the determination "whether there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon . . . release" (§ 6602, subd. (a)). The Supreme Court construed "likely" to mean that "at the probable cause hearing the superior court must find probable cause to believe that a potential SVP presents a serious and well-founded risk of committing sexually violent criminal acts that will be of a predatory nature." (Cooley v. Superior Court, supra, 29 Cal.4th at p. 256.) The court further concluded that the court must take into account any evidence of "the potential SVP's amenability to voluntary treatment upon release" in determining this likelihood of future dangerousness even though "[s]ection 6602, subdivision (a) does not expressly include the qualifying phrase 'without appropriate treatment and custody' . . . ." (Ibid.)
The Supreme Court subsequently confirmed in People v. Roberge (2003) 29 Cal.4th 979 that under section 6600, subdivision (a), which defines "sexually violent predator," "a person is 'likely [to] engage in sexually violent criminal behavior' if at trial the person is found to present a substantial danger, that is, a serious and well-founded risk, of committing such crimes if released from custody." (People v. Roberge, supra, 29 Cal.4th at p. 988, fn. omitted.) It stated: "Evidence of the person's amenability to voluntary treatment, if any is presented, is relevant to the ultimate determination whether the person is likely to engage in sexually violent predatory crimes if released from custody. (See Cooley, supra, 29 Cal.4th at p. 256; Ghilotti, supra, 27 Cal.4th at p. 927.)" (Id. at p. 988, fn. 2.)
Unfortunately, appellant's requested instruction regarding amenability to treatment did not correctly state the law regarding amenability to voluntary treatment upon unconditional release. Section 6606, from which some of the language of the proposed instruction was taken, requires the Department of Mental Health to afford individuals committed under the SVPA treatment for their diagnosed mental disorders. Subdivision (b) of that section states: "Amenability to treatment is not required for a finding that any person is a person described in Section 6600, nor is it required for treatment of that person. Treatment does not mean that the treatment be successful or potentially successful, nor does it mean that the person must recognize his or her problem and willingly participate in the treatment program." It is obvious that this statutory definition of "treatment" applies to only involuntary treatment that must be offered to SVP's. That definition of "treatment" is nonsensical when considering an individual's future dangerousness in light of the individual's amenability to voluntary treatment if unconditionally released. Amenability to voluntary treatment necessarily encompasses an individual's capability and willingness to acknowledge a mental disorder and to voluntarily pursue and participate in available treatment in the community for as long as necessary and with sufficient effectiveness to keep the risk of future dangerousness beneath the threshold for involuntary commitment under the SVPA.
While we presume that a trial court generally must give a proposed instruction that pinpoints the theory of the defense in an SVPA trial (cf. People v. Wright (1988) 45 Cal.3d 1126, 1137 [criminal defendant has the right to instructions that pinpoint theory of defense]), "a trial court may properly refuse an instruction offered by the defendant if it incorrectly states the law . . . ." (People v. Moon (2005) 37 Cal.4th 1, 30.) Since the proposed pinpoint instruction misstated the law, the trial court's refusal to give it was not error and did not deprive appellant of due process or a fair trial. Appellant was still free to introduce evidence of amenability to voluntary treatment and argue to the jury that such evidence showed that he did not meet the definition of an SVP, which he did.
2. Lack of Explicit Volitional Control Instruction
Appellant argues that the trial court erred by falling to instruct the jury that it must find that his diagnosed mental disorder caused him serious difficulty controlling his dangerous behavior. He further asserts that "to the extent that the SVPA does not expressly require such a finding, it does not comport with Due Process principles and this requirement must be read into the statute." He claims that the SVPA suffers from the same due process defect recognized by the California Supreme Court in In re Howard N. (2005) 35 Cal.4th 117, which considered the former juvenile extended detention scheme. In that case, in order to preserve the statute's constitutionality, the court construed the scheme as requiring the petition to allege, and the court to find, that an individual's "mental deficiency, disorder, or abnormality causes him to have serious difficulty controlling his dangerous behavior." (Id. at p. 135.)
The current juvenile extended detention scheme (§ 1800 et seq.) came before the California Supreme Court recently in In re Lemanuel C. (2007) 41 Cal.4th 33 and was upheld against constitutional challenges. (Id. at p. 38.) The court determined that "[a] further finding that an inability to control behavior results in 'a serious and well-founded risk of reoffense' is not required to preserve the scheme's constitutionality." (Ibid.) In explaining its holding, the court recounted the development of the decisional law of due process in the context of civil commitment, including Kansas v. Crane (2002) 534 U.S. 407 [122 S.Ct. 867] and People v. Williams (2003) 31 Cal.4th 757 (Williams).
"In Crane, the United States Supreme Court reconsidered the Kansas SVP law and explained that its decision in [Kansas v. Hendricks (1997) 521 U.S. 346 [117 S.Ct. 2072]] had set forth 'no requirement of total or complete lack of control.' (Crane, supra, 534 U.S. at p. 411, 122 S.Ct. 867.) The court explained that, to satisfy due process, '[i]t is enough to say that there must be proof of serious difficulty in controlling behavior' that, 'when viewed in light of such features of the case as the nature of the psychiatric diagnosis, and the severity of the mental abnormality itself, must be sufficient to distinguish the dangerous sexual offender whose serious mental illness, abnormality, or disorder subjects him to civil commitment from the dangerous but typical recidivist convicted in an ordinary criminal case. [Citations.]' (Crane, supra, 534 U.S. at p. 413, 122 S.Ct. 867.)" (In re Lemanuel C., supra, 41 Cal.4th at p. 42.)
"In Williams, [the California Supreme Court] interpreted Crane as confirming the principle set forth in Hendricks that 'a constitutional civil commitment scheme must link future dangerousness to a mental abnormality that impairs behavioral control, while . . . making clear that the impairment need only be serious, not absolute.' (Williams, supra, 31 Cal.4th at p. 773 . . . .) [The court] concluded that 'a commitment rendered under the plain language of the [Sexually Violent Predator Act (SVPA) ] necessarily encompasses a determination of serious difficulty in controlling one's criminal sexual violence' (id. at p. 777 . . .), as required by Crane, because 'the SVPA requires a diagnosed mental disorder affecting the person's emotional or volitional capacity that predisposes the person to commit sex crimes in a menacing degree. (6600, subd. (c).)' (Williams, supra, at p. 776 . . . .)" (In re Lemanuel C., supra, 41 Cal.4th at p. 42.)
Appellant is in essence making the same claim advanced by the defendant and rejected by the California Supreme Court in Williams, supra, 31 Cal.4th 757. In Williams, "the jury was not separately and specifically instructed on the need to find serious difficulty in controlling behavior" and the defendant claimed that "a separate 'control' instruction was constitutionally necessary under Kansas v. Crane." (Id. at p. 759.) The Supreme Court was "persuaded that a jury instructed in the language of California's statute must necessarily understand the need for serious difficulty in controlling behavior." (Id. at p. 774, fn. omitted.) It ultimately concluded that no "further lack-of-control instructions or findings are necessary to support a commitment under the SVPA." (Ibid.)
Nothing in either In re Howard N., supra, 35 Cal.4th 117 or In re Lemanuel C., supra, 41 Cal.4th 33 abrogates the Williams holding. The Supreme Court's decision in Williams controls. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
C. Jason's Out-of-Court Statements
Appellant contends that out-of-court statements made by Jason to police while in custody were unreliable hearsay and their admission violated his due process rights under the state and federal Constitutions. In a motion in limine, appellant sought to exclude those statements on the grounds that (1) their unreliability rendered them inadmissible under the hearsay exception established by section 6600, subdivision (a)(3), (2) the statements were inadmissible under section 6600, subdivision (a)(3) to the extent that they did not prove details of a qualifying conviction of a sexually violent offense (see § 6600), and (3) the statements were inadmissible under Evidence Code section 352 because they were uncorroborated, inflammatory and unduly prejudicial. He also contended in the motion that the government's expert witnesses should not testify as to Jason's out-of-court statements because the statements were unreliable and the risk that the jury might improperly consider the testimony to be independent proof of facts outweighed the probative value of the evidence. Appellant lastly asserted that, if the motion to exclude those statements was denied, the expert witnesses nevertheless should be prevented from testifying about the specifics of the conduct described by Jason.
In regard to documentary evidence containing Jason's statement that appellant told him that appellant had digitally penetrated Aaron's anus, the trial court indicated that it was inclined to admit those documents but deferred the ruling until trial. In regard to documentary evidence containing Jason's statements that he and appellant participated in sodomy and oral copulation, the deputy district attorney indicated that those statements would be offered only as a basis for the evaluators' opinions and would not be coming in for the truth of the matter asserted. The parties agreed that those statements would be stricken from any documents going to the jury. The court indicated that a final decision whether a particular document would be admitted would be made at the time the evidence was offered into evidence at trial.
In regard to exclusion of documentary evidence and testimony under Evidence Code section 352, the deputy district attorney reiterated that Jason's out-of-court statements indicating he was living with appellant and they had a sexual relationship would be offered only as a basis for the evaluators' opinions and would not be coming in for the truth of the matter asserted. Defense counsel indicated he would "submit on it . . . ." As to Jason's out-of-court statement regarding digital penetration of Aaron by appellant, the court noted that appellant had admitted "having sex with Jason" and ruled that the probative value of the statement outweighed any prejudicial effect.
In regard to limiting the testimony of expert witnesses, the court again observed that appellant had admitted to evaluators that he had engaged in sodomy with Jason, which, the court concluded, gave "some reliability" to Jason's statements. The court indicated that it would allow the government's experts to testify regarding Jason's out-of-court statements.
At trial, Dr. Owen indicated that he reviewed the police reports and the probation reports generated in connection with the 1989 offenses committed against Aaron. Dr. Owen related statements made by Jason without further defense objection.
The hearsay arguments appellant is now raising are fatally flawed for several reasons. First, appellant fails to show that Jason's statements were offered or admitted for "the truth of the matters stated" and, therefore, qualified as hearsay, subject to exclusion under the hearsay rule. (Evid. Code, § 1200.) The parties stipulated at trial that "the People have met their burden of proof with respect to the predicate prior convictions in this case and there is no need to submit that issue to the jury." None of the government's documentary evidence was admitted into evidence. "[A] witness's on-the-record recitation of sources relied on for an expert opinion does not transform inadmissible matter into 'independent proof' of any fact. [Citations.]" (People v. Gardeley (1996) 14 Cal.4th 605, 619.)
People v. Otto (2001) 26 Cal.4th 200, a case cited by appellant, does not support his contention that the admission of Jason's unreliable hearsay statements violated due process. In Otto, the California Supreme Court determined that section 6600, subdivision (a)(3), states an exception to the hearsay rule. (Id. at pp. 206-209.) The section "permits the details of predicate offenses to be proven by documentary evidence in an SVP commitment proceeding" (id. at p. 206) and, thereby, "allows the use of multiple-level hearsay to prove the details of the sex offenses for which the defendant was convicted." (Id. at p. 208.) In rejecting the argument that allowing the admission of such documentary evidence for hearsay purposes violates due process, the Supreme Court observed that trial courts have "discretion under Evidence Code section 352 to exclude unreliable hearsay," which acts as a safeguard against violation of due process. (Id. at p. 214.) The court concluded that the victims' out-of-court statements in Otto possessed "sufficient indicia of reliability to satisfy due process." (Id. at p. 211.) Appellant has not shown that any documentary evidence containing Jason's out-of-court statements was admitted at trial for hearsay purposes under the hearsay exception created by section 6600, subdivision (a)(3), and, therefore, Otto is inapposite.
Section 6600, subdivision (a)(3), provides: "Conviction of one or more of the crimes enumerated in this section shall constitute evidence that may support a court or jury determination that a person is a sexually violent predator, but shall not be the sole basis for the determination. The existence of any prior convictions may be shown with documentary evidence. The details underlying the commission of an offense that led to a prior conviction, including a predatory relationship with the victim, may be shown by documentary evidence, including, but not limited to, preliminary hearing transcripts, trial transcripts, probation and sentencing reports, and evaluations by the State Department of Mental Health. Jurors shall be admonished that they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior."
Second, the record does not show that appellant challenged the admissibility of Dr. Owen's opinion because it was based in part upon Jason's allegedly unreliable statements. "An expert may generally base his opinion on any 'matter' known to him, including hearsay not otherwise admissible, which may 'reasonably . . . be relied upon' for that purpose. (Evid. Code, § 801, subd. (b); In re Fields (1990) 51 Cal.3d 1063, 1070 . . . .)" (People v. Montiel (1993) 5 Cal.4th 877, 918.) "Under [Evidence Code] Section 803 . . ., an opinion may be held inadmissible or may be stricken if it is based wholly or in substantial part upon improper considerations. Whether or not the opinion should be held inadmissible or stricken will depend in a particular case on the extent to which the improper considerations have influenced the opinion. 'The question is addressed to the discretion of the trial court.' " (Cal. Law Rev. Com. com, 29B Pt. 3 West's Ann. Evid. Code (1995 ed.) foll. § 803, p. 99.) In the absence of a specific request, however, a trial court is not required to exclude expert opinion on the ground it is "based in whole or in significant part on matter that is not a proper basis for such an opinion." (Evid. Code, § 803.)
Appellant did not plainly state in his in limine motion that he was seeking to exclude expert opinion predicated upon Jason's allegedly unreliable extrajudicial statements. Appellant now asserts that Dr. Owen "could not use Jason's unreliable hearsay statements as the basis for his opinion because [Jason's] statements are not the type of information reasonably relied upon by experts in formulating an opinion." But even now, he declares that he is not contending that Dr. Owen should not have been allowed to testify. Generally, where an expert states an opinion without judicial limitation or where an expert is permitted to state an opinion after excluding from consideration matters determined by the court to be improper (see Evid. Code, § 803), "[o]n direct examination, the expert may explain the reasons for his opinions, including the matters he considered in forming them." (People v. Montiel, supra, 5 Cal.4th at p. 918.) In the absence of a timely and specific objection to an opinion's basis, the trial court was not required to exclude any part of Dr. Owen's testimony regarding his expert opinion, or the basis therefore, on the ground the opinion had an improper basis and the issue was not preserved for appeal. (See Evid.Code, §§ 353, 803; see also Leonardini v. Shell Oil Co. (1989) 216 Cal.App.3d 547, 584.)
Even assuming that appellant's motion adequately preserved a claim that Jason's statements were too unreliable to be a permissible basis for an expert opinion, we find no error. "The California courts have made it clear that the nature of the matter upon which an expert may base his opinion varies from case to case. In some fields of expert knowledge, an expert may rely on statements made by and information received from other persons; in some other fields of expert knowledge, an expert may not do so. For example, a physician may rely on statements made to him by the patient concerning the history of his condition." (Law Rev. Com. com, 29B Pt. 3 West's Ann. Evid. Code (1995 ed.), foll. § 801, p. 19.) "In regard to some matters of expert opinion, an expert must, if he is going to give an opinion that will be helpful to the jury, rely on reports, statements, and other information that might not be admissible evidence." (Ibid.) At a minimum, "the matter relied upon by the expert in forming his opinion must be of a type that reasonably may be relied upon by experts in forming an opinion upon the subject to which his testimony relates." (Ibid.) Appellant has not shown that out-of-court statements contained in probation and police reports are not the type of matters reasonably and ordinarily relied upon by experts in the mental health field in forming opinions about the risk of danger or reoffense by those suffering from a mental disorder. (Cf. People v. Miller (1994) 25 Cal.App.4th 913, 917-918 [probation report could be reasonably relied upon by mental health expert in rendering opinion in MDO proceeding].)
Third, appellant failed to interpose any due process objection that the admission of Jason's out-of-court statements deprived him of a fundamentally fair trial or violated due process. Such an evidentiary claim is waived except to the extent he is now arguing that "the asserted error in admitting the evidence over his Evidence Code section 352 objection had the additional legal consequence of violating due process." (People v. Partida (2005) 37 Cal.4th 428, 435; see Evid. Code, § 353.) "[T]he constitutional argument is forfeited to the extent the defendant argued on appeal that the constitutional provisions required the trial court to exclude the evidence for a reason not included in the actual trial objection." (Id. at pp. 437-438.)
The trial court acted within its discretion in not excluding Dr. Owen's testimony regarding Jason's extrajudicial statements pursuant to Evidence Code section 352. Courts have recognized that "an expert's need to consider extrajudicial matters" and "a jury's need for information sufficient to evaluate an expert opinion" may "conflict with an accused's interest in avoiding substantive use of unreliable hearsay." (People v. Montiel, supra, 5 Cal.4th at p. 919.) When a defendant has this concern, the defendant may request a limiting instruction that "matters admitted through an expert go only to the basis of his opinion and should not be considered for their truth" (see Evid. Code, § 355). But in the absence of a request for a limiting instruction, a court has no duty to give such instruction. (See People v. Boyer (2006) 38 Cal.4th 412, 465.)
A defendant may also move "to exclude from an expert's testimony any hearsay matter whose irrelevance, unreliability, or potential for prejudice outweighs its proper probative value" pursuant to Evidence Code section 352 (People v. Montiel, supra, 5 Cal.4th at p. 919) but "California law gives the trial court discretion to weigh the probative value of inadmissible evidence relied upon by an expert witness as a partial basis for his opinion against the risk that the jury might improperly consider it as independent proof of the facts recited therein. [Citation.]" (People v. Coleman (1985) 38 Cal.3d 69, 91.) "The exercise of this discretion may require exclusion of portions of inadmissible hearsay which were not related to the expert opinion. [Citation.] . . . In still other cases where the risk of improper use of the hearsay outweighs its probative value as a basis for the expert opinion it may be necessary to exclude the evidence altogether. [Citations.]" (Id. at pp. 92-93.) "We apply the deferential abuse of discretion standard to a trial court's rulings under Evidence Code section 352. [Citations.]" (People v. Pollock (2004) 32 Cal.4th 1153, 1171.)
Although appellant complained about the general unreliability of Jason's statements because they were uncorroborated and made while in custody, appellant did not demonstrate that the circumstances of Jason's custody or other circumstances rendered his statements involuntary or his statements were inherently improbable. In addition, even though appellant asserted that he was not convicted of penetrating Aaron (see § 289 [forcible sexual penetration]), he did not show that he was acquitted of such a charge either. Appellant was free to test the validity and weight of Dr. Owen's opinion by questioning him about the factual bases of his opinion on cross-examination. (See Evid. Code, § 721, subd. (a) [expert may be "fully cross-examined as to . . . the matter upon which his or her opinion is based and the reasons for his or her opinion"]; People v. Montiel, supra, 5 Cal.4th at p. 923; People v. Bell (1989) 49 Cal.3d 502, 532; see also McCormick on Evidence (6th ed.) § 13 ["cross-examiner may explore whether, and if so how, the non-existence of any fact or the existence of a contrary fact, would or might affect the opinion"].)
In addition, appellant was entitled to call "other witnesses to offer evidence showing the nonexistence or error in the data" upon which an expert based an opinion. (Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923; see Evid. Code, § 780 [factfinder "may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony"].) "[W]here the facts underlying the expert's opinion are proved to be false or nonexistent, not only is the expert's opinion destroyed but the falsity permeates his entire testimony . . . ." (Kennemur v. State of California, supra, 133 Cal.App.3d at pp. 923-924.) "The value of an expert's opinion depends upon the quality of the material on which the opinion is based and the reasoning used to arrive at the conclusion. [Citations.]" (People v. Marshall (1997) 15 Cal.4th 1, 31-32.)
The court instructed the jurors that in evaluating the believability of an expert witness, they could consider the "reasons the expert gave for any opinion, and the facts or information on which the expert relied in reaching that opinion." The jurors were told: "You may disregard any opinion that you find unbelievable, unreasonable or unsupported by the evidence."
The trial court could reasonably conclude that the probative value of Jason's statements to show a basis for expert opinion, a nonhearsay purpose, outweighed the potential for undue prejudice and those statements should not be excluded under Evidence Code section 352. Since we find the court did not abuse its discretion, appellant's due process claim, to the extent it is cognizable, fails as well.
D. Constitutional Claims
1. Prohibition against Ex Post Facto Laws
Appellant contends that the SVPA is an impermissible ex post facto law because it is in effect "a punitive measure" to further punish individuals who were convicted and have served their full prison sentences. He argues that this conclusion is supported by the facts that an SVP need not be amenable to treatment, the SVPA does not provide for diagnosis or treatment while individuals are incarcerated, and confinement of SVP's commences upon completion of their prison terms. He maintains that the "civil" label belies its punitive purpose and effect.
Appellant recognizes, however, that the California Supreme Court has squarely rejected an expo facto challenge to the SVPA in Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1170-1179. The high court's decision in that case is binding on this court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
2. Right to Equal Protection
"The Equal Protection Clause of the Fourteenth Amendment commands that no State shall 'deny to any person within its jurisdiction the equal protection of the laws,' which is essentially a direction that all persons similarly situated should be treated alike. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982)." (City of Cleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432, 439 [105 S.Ct. 3249].) "This provision creates no substantive rights. [Citations.] Instead, it embodies a general rule that States must treat like cases alike but may treat unlike cases accordingly. Plyler v. Doe, 457 U.S. 202, 216, 102 S.Ct. 2382, 2394, 72 L.Ed.2d 786 (1982) (' "[T]he Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same" ') (quoting Tigner v. Texas, 310 U.S. 141, 147, 60 S.Ct. 879, 882, 84 L.Ed. 1124 (1940))." (Vacco v. Quill (1997) 521 U.S. 793, 799 [117 S.Ct. 2293].) "The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. [Citation.]" (In re Eric J. (1979) 25 Cal.3d 522, 530.)
Appellant argues that SVP's are "most similarly situated" to mentally disordered offenders (MDO's) who are subject to commitment following completion of their prison terms. (See Pen. Code, § 2960 et seq.) He suggests that SVP's and MDO's have "committed a violent criminal act that led to conviction" and states that both groups are "nearing the end of the prison term which resulted from that conviction . . . ." Appellant asserts that "[f]or equal protection purposes, persons who are completing their prison terms are similarly situated to all others committed under civil commitment schemes, and there is no conceivable basis for applying a different civil commitment standard to them." He asserts that, impliedly unlike an SVP, a "MDO cannot be involuntarily committed unless, by reason of a severe mental disorder, the individual represents a 'substantial danger of physical harm to others.' (Pen. Code, § 2972, subd. (c).)" He also seems to claim that differences between the two statutory schemes with regard to precommitment mental health treatment in prison violates equal protection. He maintains that there is "no rational basis for the disparate treatment" of SVP's and MDO's.
Appellant's claims, insofar as they are discernible, have already been rejected by the courts. In Hubbart v. Superior Court, supra, 19 Cal.4th 1138, the California Supreme Court determined, in the context of a due process analysis, that the SVPA "clearly requires the trier of fact to find that an SVP is dangerous at the time of commitment." (Id. at p. 1162.) It stated: "Nothing in the statute permits the trier of fact to conclude that the committed person 'currently' suffers from a 'diagnosed mental disorder' and is 'a danger,' even though he is not likely to commit sexually violent crimes and does not pose a present and substantial threat to public safety." (Ibid., fn. omitted.) The Supreme Court then went on to reject Hubbart's equal protection claim, which was based on the allegation that the MDO law (Pen. Code, § 2960 et seq.) required "present dangerousness" for commitment but the SVPA did not. The court concluded that "SVP's must be dangerous at the time of commitment." (Id. at p. 1169.) It stated that "section 6600, subdivision (a) does not permit the involuntary commitment of mentally disordered persons based on a definition of dangerousness materially distinct from the one Hubbart claims must apply here in order to ensure equal protection of the laws." (Ibid.) To the extent that appellant is making a substantially similar argument to Hubbart's regarding the standard for commitment, we are bound by the Supreme Court's decision in Hubbart v. Superior Court. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Appellant seems to argue that MDO's and SVP's are similarly situated for purposes of precommitment treatment because a prior offense is a prerequisite to involuntary commitment. We first note that appellant's suggestion, that prisoners subject to involuntary commitment under both the SVPA and MDO law must be serving a sentence for conviction of a violent criminal act, is not correct. Under the SVPA, a person must be in custody under the jurisdiction of the Department of Corrections and serving a determinate prison term or a parole revocation term (§ 6601) but there is no requirement that the person be serving a sentence for a qualifying conviction of a sexually violent offense (see § 6600) or for conviction of a violent criminal act. Also, there is no requirement in the SPVA that the crime for which the person is incarcerated be somehow related to a diagnosable mental disorder, no less a diagnosable mental disorder that "makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (§ 6600.) These are critical distinctions with respect to precommitment mental health treatment in prison.
In People v. Hubbart (2001) 88 Cal.App.4th 1202, this court rejected Hubbart's contention that "the SVPA violates equal protection by failing to provide for treatment prior to the commencement of long-term commitment, in contrast to the MDO law" because "because persons committed under the SVPA are not similarly situated to persons committed under the MDO law . . . for this purpose. [Citation.]" (Id. at p. 1221.) We observed, among other things, that "[u]nder the SVPA, it is not necessary for the prison term to be related to one of the person's qualifying sexually violent offenses. (Welf. & Inst. Code, § 6600, subd. (a).)" (Ibid.) In contrast, under MDO law, the "severe mental disorder" must be "one of the causes of" or "an aggravating factor in the commission of a crime for which the prisoner was sentenced to prison." (Pen. Code, § 2962, subd. (b).)
Appellant appears to also argue that MDO's and SVP's are similarly situated for purposes of precommitment treatment because both commitment schemes subject to commitment individuals whose mental disorder may be kept in remission without treatment. Neither the MDO law nor the SVPA targets persons whose mental disorders can be kept in remission without any treatment because, under that circumstance, the individuals would not pose the requisite danger to public safety as a result of the disorder. Furthermore, if by "may" be kept in remission without treatment appellant means a conceivable possibility, both commitment schemes require a threshold of present dangerousness for commitment. (See Hubbart v. Superior Court, supra, 19 Cal.4th at pp. 1168-1170; see also § 6600, subd. (a)(1); Pen. Code, § 2962.) Dangerousness for purposes of civil commitment statutes is ordinarily expressed in terms of risk. (See Hubbart v. Superior Court, supra, 19 Cal.4th at p. 1163, fn. 26.) Even if SVP's are similarly situated to MDO's for purposes of involuntary civil commitment (id. at p. 1170), that does not mean that such persons are similarly situated for purposes of precommitment mental health treatment in prison for the reasons previously stated.
Appellant contends that both statutory schemes subject to commitment pedophiles whose mental disorders may never be successfully treated. While this may be true, it does not mean that all incarcerated pedophiles are similarly situated with respect to precommitment treatment. Prospective MDO pedophiles must be serving a prison sentence for conviction of a crime at least aggravated by a severe mental disorder while prospective SVP pedophiles may be serving a prison term totally unrelated to any diagnosable mental disorder.
Appellant has not persuaded us that the conclusions reached in People v. Hubbart, supra, 88 Cal.App.4th 1202 were erroneous or that prisoners subsequently committed under the SVPA or MDO law are similarly situated for purposes of precommitment mental health treatment while in prison. Both the SVPA and the MDO law mandate treatment following civil commitment. (See § 6606, subd. (a) ["A person who is committed under [the SVPA] shall be provided with programming by the State Department of Mental Health which shall afford the person with treatment for his or her diagnosed mental disorder"]; Pen. Code § 2972, subd. (f) ["Any commitment under this article [MDO law] places an affirmative obligation on the treatment facility to provide treatment for the underlying causes of the person's mental disorder"].)
Moreover, we query whether the statutory distinctions concerning precommitment treatment of prospective SVP's and MDO's burdens any fundamental right, such as liberty. "If a legislative classification or distinction 'neither burdens a fundamental right nor targets a suspect class, we will uphold [it] so long as it bears a rational relation to some legitimate end.' Romer v. Evans, 517 U.S. 620, 631, 116 S.Ct. 1620, 1627, 134 L.Ed.2d 855 (1996)." (Vacco v. Quill, supra, 521 U.S. at p. 799.)
We reject appellant's arguments that SVPA violates the constitutional right to equal protection of the laws.
The July 24, 2006 order of commitment is affirmed.
WE CONCUR: RUSHING, P. J., PREMO, J.